Consumer Watchdog Barks Back at Google

Consumer Watchdog barked back at Google's citation that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties" by urging Gmail's 400 million users to stop using the email service.

The citation is featured in its June 13 motion to dismiss a complaint filed by nine plaintiffs—half who have Gmail accounts, and half who simply exchange emails with Gmail users—that accuses the Internet behemoth of committing an illegal interception by automatically scanning messages sent to Gmail users. The plaintiffs argue that the scanning violates the Federal Wiretap Act—including state law analogues for Florida, Maryland, and Pennsylvania, where some of the plaintiffs reside—and the California Invasion of Privacy Act (CIPA).

“Just as a sender of a letter to a business colleague cannot be surprised that the recipient's assistant opens the letter, people who use web-based email today cannot be surprised if their emails are processed by the recipient's [email provider] in the course of delivery,” reads the motion to dismiss. “'Indeed, ‘a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.'”

Consumer advocacy group Consumer Watchdog surfaced the document August 12 in a news release and referred to the claim as a “stunning admission.”

“The public needs to understand what sort of privacy they get when they go online, and there are various indications that there is less and less privacy offered than [what] people might suspect is there,” says John Simpson, privacy project director for Consumer Watchdog.

The claim that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties" is a quote from the 1979 Smith v. Maryland case, which upheld a controversial law stating that an individual involving a third party in a conversation loses some legal privacy rights.

Google argues that the plaintiffs' claims are invalid because because email scanning allows Google to deliver targeted advertising and therefore offer Gmail as a free service; because this scanning occurs as part of this course of business, federal and state wiretap laws protect the Internet giant from liability. Additionally, such scanning allows Gmail to detect spam, find viruses, and provide inbox search capabilities to users.

Google also argues that CIPA doesn't apply to emails and even if it did, because the plaintiffs live outside of California, they are beyond CIPA protections. Google adds that the plaintiffs that use Gmail agreed to the terms of service, which describes the email scanning, when they signed up while the non-Gmail users "impliedly consented" because "all users of email must necessarily expect that their emails will be subject to automated processing." After all, Google adds, other ESPs like Yahoo!, AOL, and Hotmail commonly provide targeted advertisements in their webmail services.

Simpson disputes this last point.

“My understanding is that they actually don't. No one does the sort of data mining and reading the content of the message that Google does,” Simpson says.

According to an August 15 Consumer Watchdog news release, Google responded to the consumer advocacy group's claims with the following statement:

“We take our users' privacy and security very seriously; recent reports claiming otherwise are simply untrue,” says a Google spokesperson. “We have built industry-leading security and privacy features into Gmail — and no matter who sends an email to a Gmail user, those protections apply.”

A Google representative could not be reached for further comments.

A court hearing will take place on September 5.

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